Lawyers Manual - Unified Court System

66 Kim Susser
custody cases should cite the case law in response to any proposed settlement
that includes joint custody. Citing case law is an easy way to protect your client
from being blamed for not agreeing to such a “reasonable” disposition.
Orders of Protection
An order of protection issued on consent in a family offense case is not
sufficient to prove domestic violence in a custody case. 42 Attorneys who anticipate
a battle over custody or visitation should resist succumbing to pressure from the
judge and/or court attorney to accept a batterer’s offer to consent to the order.
Instead, as long as your client has sufficient evidence to meet her burden, and as
long as there are no other issues that might prevent her from testifying, especially
issues that go to her credibility such as mental illness or substance abuse, you
probably should request a fact-finding hearing on the family offense case. A
finding of domestic violence can be key to limiting visits and winning custody,
especially when the findings specify that the child was subjected to or witnessed
the batterer’s violence.
In determining whether to file a family offense petition, attorneys need to
consider whether the abuser will retaliate by seeking custody or visitation. Often
the abuser files for custody or visitation within days of having been served with
the family offense petition. If this happens, it may be a good idea to file an
answer to his petition in order to help the court understand the issues and facts
favorable to your client early on in the case. If the abuser obtains a temporary
order of custody, you will have to file an order to show cause or a writ of habeas
corpus for the return of the child. Temporary orders are often in place for up to
a year or more if a custody case is pending. These motions are not only critical
tools for achieving a speedy return of the child during the pendency of the case
but also provide an important opportunity early on in the case to convey to the
court the victim’s experience of the violence and other relevant facts.
Children as Witnesses
The impact of domestic violence on children has been the subject of much
academic and legal discussion in recent years. Often, children are the primary or
sole witnesses to incidents of violence in their homes. As a result, they may be a
valuable resource for information, and/or potential witnesses at a hearing.
While a child’s testimony may be important, most judges do not believe it
appropriate to call the child as a witness and put him or her in the middle of a
custody or visitation dispute. However, it can be valuable in developing your
litigation strategy to understand the child’s position and to learn what the child